P-H-M defense in high court

Outcome in negligence trial tied to separate case.

Outcome in negligence trial tied to separate case.

December 09, 2005|MARTIN DeAGOSTINO Tribune Staff Writer

INDIANAPOLIS -- Peter Pan flew in the original book, the Broadway musical and in movies. But Peter Pan fell 30 feet during an amateur production at Elsie Rogers Elementary School five years ago, leaving 17-year-old David Howard with serious injuries and $100,000 in medical bills. Now the Indiana Supreme Court will decide if a $200,000 jury award to Howard should stand, or if the Penn-Harris-Madison School Corp. is right to claim that Howard's own negligence should bar the award. The Indiana Court of Appeals ruled for the school system in August, citing improper jury instructions. The Supreme Court took the case on appeal to clarify some uncertainties in cases that involve a defense of contributory negligence, according to lawyers familiar with the case. As such, the court's decision directly bears on another pending case against P-H-M, involving a student who was molested by her fourth-grade teacher. In that case, the school corporation claims not that the girl contributed to the crime, but that she should have reported it long before she did. The school's defense is based on a legal theory called standard of care, which also applies in Howard's case. Essentially, P-H-M says Howard should have exercised the same degree of care that an adult would have exercised when he attached a harness to a cable to simulate flight across a stage. But Howard's lawyer says that's too strict a standard, even though Indiana trial rules have long applied the adult standard of care to minors above the age of 14. "Adolescents do not have the judgment abilities that adults have," attorney Douglas D. Small told the court. Small argued that minors of any age should be compared to minors of similar age, experience and intelligence, and not to adults. What about teen drivers who are licensed like all other motorists, Justice Theodore Boehm asked. Should the state assume a higher accident rate based on inexperience and simply accept it? Answer: "Most teens do the right thing, and I don't see the (relaxed) standard opening the floodgates (to negligent acts)." The hearing involved a brief history of Indiana's standard of care rule, often called the "rule of sevens." Rooted in biblical injunctions, the rule assigns greater or lesser responsibility to children depending on if they are younger than 7, younger than 14 or older than 14. Noting the rule's biblical origin, Justice Frank Sullivan Jr. asked Shannon L. Robinson, P-H-M's lawyer, why it should apply. "Maybe my question is, should we follow the Bible?" Answer: "My question is, should we follow 90 years of precedent in this court?" Robinson said Howard was an honor roll student considered mature by adults who knew him, and that he volunteered for the Peter Pan stunt. As such, she said, he was engaged in adult activity and should have exercised an adult's care and caution as he hooked his harness to the cable. Following a different line of questions, Chief Justice Randall T. Shepard asked Small if his proposed standard of care would affect cases where a 9-year-old is harmed by a 17-year-old. Possibly, Small answered. But he said the court's job -- "with all due respect" -- is to reach a just outcome that is consistent with the facts of the case. Shepard smiled and turned to his colleagues. "We know where we're headed," he said. Staff writer Martin DeAgostino: mdeagostino@sbtinfo.com (317) 634-1707